Citation Nr: 0702342
Decision Date: 01/26/07 Archive Date: 01/31/07
DOCKET NO. 04-03 125A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Roanoke,
Virginia
THE ISSUES
1. Entitlement to an increased evaluation for chronic low
back pain, currently evaluated as 20 percent disabling.
2. Entitlement to a total rating based on individual
unemployability due to service connected disabilities.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
J. L. Prichard, Counsel
INTRODUCTION
The veteran had active service from November 1992 to November
1994.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal of rating decisions of the Roanoke,
Virginia, regional office (RO) of the Department of Veterans
Affairs (VA).
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the veteran
if further action is required.
REMAND
The veteran contends that his service connected low back
disability has increased in severity to such an extent that
an evaluation greater than 20 percent is warranted. In fact,
the veteran argues that his back disability renders him
unemployable.
A review of the claims folder indicates that additional
development is required regarding several matters.
The veteran's most recent VA examination was a fee basis
examination conducted in December 2002, which included an X-
ray study. This examination is now more than four years old.
Since that time, the rating criteria for the veteran's
disability were changed in August 2003. More importantly,
there is no indication that the claims folder was provided to
the examiner for review in conjunction with the examination.
The circumstances of this case make this omission of the
claims folder potentially harmful to the veteran's claim.
The examiner noted that the veteran's established diagnosis
was chronic low back pain. The veteran related a history of
degenerative disc disease confirmed by computed axial
tomography (CAT), and also informed the examiner that he had
recently undergone a magnetic resonance imaging study (MRI)
the previous month. The examiner noted that the results of
the November 2002 MRI were pending. Following the
examination, the examiner confirmed the diagnosis of chronic
low back pain, and added that there was no radiologic
evidence "on the plain films to change the diagnosis."
However, the Board notes that the November 2002 MRI results
reveal mild disc degeneration and broad posterior disc bulge
at L5 to S1. The Board is unable to discern whether or not
these findings constitute degenerative disc disease and, if
so, whether or not this is a progression of his service
connected low back pain. Therefore, an additional VA
examination is required to obtain current medical findings,
and to ascertain whether or not the veteran has degenerative
disc disease which must be considered when evaluating his
disability.
In addition, the Board further notes that the veteran
submitted a statement in support of claim in February 2004
that was accepted as his substantive appeal. The veteran
stated that he had an appointment with his doctor the
following month, and he requested an extension in order to
obtain the new evidence. The veteran was granted the
extension by the RO, but the veteran apparently never
forwarded the additional evidence.
However, a review of the claims folder indicates that the
veteran's only source of treatment has been the VA, which
indicates that the treatment referred to by the veteran was
most likely from a VA facility. He has never stated that he
receives private treatment for his back disability. The most
recent VA treatment records contained in the claims folder
are dated 2003, and there is no indication that an attempt
has been made to obtain additional records. The VA has a
responsibility to obtain all records in its possession prior
to reaching a decision in this case. Therefore, the Board
finds that an attempt must be made to obtain additional VA
treatment records.
Finally, the Board notes that the Veterans Claims Assistance
Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103,
5103A, and implemented in part at 38 C.F.R § 3.159, amended
VA's duties to notify and to assist a claimant in developing
information and evidence necessary to substantiate the claim.
Proper VCAA notice must inform the claimant of any
information and evidence not of record (1) that is necessary
to substantiate the claim; (2) that VA will seek to provide;
(3) that the claimant is expected to provide; and (4) must
ask the claimant to provide any evidence in her or his
possession that pertains to the claim. 38 U.S.C.A. § 5103(a)
(West 2002); C.F.R. § 3.159(b)(1) (2005). VCAA notice should
be provided to a claimant before the initial unfavorable
agency of original jurisdiction (AOJ) decision on a claim.
Pelegrini v. Principi, 18 Vet. App. 112 (2004).
The Court has also held that that the VCAA notice
requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. §
3.159(b) apply to all five elements of a service connection
claim. Those five elements include: 1) veteran status; 2)
existence of a disability; (3) a connection between the
veteran's service and the disability; 4) degree of
disability; and 5) effective date of the disability.
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
In the present appeal, the veteran was provided with a
December 2002 VCAA letter that provided the veteran with the
first three of the Pelegrini elements for the increased
rating claim. However, he has not been provided with
information that explains to him the evidence necessary to
establish his claim for a total rating based on
unemployability. In addition, the veteran has never been
notified that he should provide any evidence in his
possession that pertains to his claims. Furthermore, the
veteran has not been provided with the final two Dingess
elements regarding the degree of disability and the effective
date of an award. The Board finds that the veteran should be
provided additional VCAA notification and a chance to respond
before proceeding with adjudication of his appeal.
Accordingly, the case is REMANDED for the following action:
1. Ensure that all VCAA notification and
development action required by 38 U.S.C.A.
§§ 5102, 5103, and 5103A (West 2002 &
Supp. 2005) are fully complied with and
satisfied. See also 38 C.F.R. § 3.159
(2006). This notification must include
notice of the evidence or information
needed to substantiate the claims.
2. The RO should obtain the names and
addresses of all medical care providers
who treated the veteran for his low back
pain since 2003. After securing the
necessary release, the RO should obtain
these records. This should include an
attempt to obtain any additional VA
treatment records, particularly the March
2004 records referred to by the veteran.
3. After the records requested above
have been obtained and placed in the
claims folder, the veteran should be
afforded a VA orthopedic examination to
determine the nature and severity of his
service connected back disability. The
claims folder should be made available to
the examiner for review in conjunction
with the examination, and the examiner
should note that it has been reviewed.
The examiner should report the ranges of
motion of the lumbar spine in degrees.
The examiner should indicate whether the
disability is manifested by weakened
movement, excess fatigability,
incoordination, pain, or flare-ups. Such
inquiry is not to be limited to muscles
or nerves. These determinations should
be expressed in terms of the degree of
additional range-of-motion loss due to
any weakened movement, excess
fatigability, incoordination, pain, or
flare-ups.
The examiner should note any neurologic
impairment related to the back
disability. Following the conclusion of
the examination and the review of the
record, particularly the November 2002
MRI, the examiner should attempt to
express the following opinion(s): 1) Does
the veteran currently have degenerative
disc disease? 2) If the veteran is found
to have degenerative disc disease, is it
as likely as not that this is a
progression of or otherwise related to
his service connected low back pain?
Lastly, the examiner should discuss
whether the service-connected low back
disability renders the veteran
unemployable. The reasons and bases for
all opinions should be provided.
4. After the development requested above
has been completed to the extent
possible, the claims should be re-
adjudicated. If any of the claims are
not fully granted a supplemental
statement of the case should be issued
before the case is returned to the Board,
if otherwise in order.
Thereafter, the case should be returned to the Board for
further appellate consideration, if otherwise in order. The
Board intimates no opinion as to the outcome of this case.
The appellant need take no action until so informed. The
purpose of this REMAND is to ensure compliance with due
process considerations.
The purpose of the examination requested in this remand is to
obtain information or evidence (or both) which may be
dispositive of the appeal. Therefore, the veteran is hereby
placed on notice that pursuant to 38 C.F.R. § 3.655 (2006)
failure to cooperate by attending the requested VA
examination may result in an adverse determination. See
Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991).
The veteran has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005).
_________________________________________________
C. TRUEBA
Acting Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2006).